Partly allowed

Shri. Shivanand S/O Virupaxappa Angadi, v. Sri. Vijay S. Chinnannavar

Karnataka HC9 Feb 2023MFA/21024/2011

Case brief

AI extract

What is this about?

The High Court allowed a motor accident compensation appeal partially. It held that the Tribunal's assessment of loss of amenities was low and increased it by Rs. 15,000. The Court also corrected the Tribunal's finding on liability, affirming that the insurance company is liable as the driver held a valid licence during the accident. The impugned award was modified and liability revised.

What did the court decide?

Award of an additional Rupees 15,000/- for loss of amenities; liability of the insurance company set aside; compensation to be deposited by insurer within three months.

Shri. Shivanand S/O Virupaxappa Angadi, Vs Sri. Vijay S… — Insurance | Karnataka HC (2023)

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MFA No. 21024 of 2011

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 9^TH DAY OF FEBRUARY, 2023

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BEFORE

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THE HON'BLE MR JUSTICE C M JOSHI

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MISCELLANEOUS FIRST APPEAL NO. 21024 OF 2011

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(MV-)

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BETWEEN:

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SHRI. SHIVANAND S/O VIRUPAXAPPA ANGADI, AGE: 36 YEARS, OCC: HOTEL BUSINESS, R/O BUDIHAL, TQ. BAILHONGAL 591102, DIST. BELGAUM

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…APPELLANT

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(BY SRI. MADANMOHAN M KHANNUR, ADVOCATE)

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AND:

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HIGHCOURT YASHAVANTNARAYANKAR OFKARNATAKA-DHARWAD BENCH

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SRI. VIJAY S. CHINNANAVAR, AGE: MAJOR (CORRECT AGE NOT KNOWN), OCC: BUSINESS, R/O TEACHERS COLONY, TQ. BAILHONGAL 591102, DIST. BELGAUM OWNER OF THE AMBASSADOR VEHICLE BEARING NO.KA24/A-8

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THE DIVISIONAL MANAGER,

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THE NEW INDIA INSURANCE COMPANY LIMITED, RATHOD BUILDING, BUS STAND ROAD, GOKAK 591307, DIST. BELGAUM, (INSURER OF THE AMBASSADOR VEHICLE BEARING NO.KA-24/A-8)

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…RESPONDENTS

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(R1 - NOTICE DISPENSED WITH,

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SRI.M.K.SOUDAGAR, ADVOCATE FOR R2)

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MFA No. 21024 of 2011

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT SEEKING TO MODIFY THE JUDGEMENT AND AWARD DATED 29/09/2010, PASSED IN MVC NO.11/2006, ON THE FILE OF THE MEMBER, ADDITIONAL MACT, BAILHONGAL, PRESIDING OFFICER, FAST TRACK COURT, BAILHONGAL, AND AWARD THE COMPENSATION AS CLAIMED IN THE CLAIM PETITION, IN THE INTEREST OF JUSTICE AND EQUITY.

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THIS MFA, COMING ON FOR FINAL HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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Aggrieved by the judgment and award passed by the Additional MACT, Bailhongal and Fast Track Court, Bailhongal in MVC No.11/2006 dated 29.09.2010, the claimant has approached this Court in appeal.

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Heard the learned counsel appearing for the appellant and learned counsel appearing for respondent No.2. Notice to respondent No.1 has been dispensed with at the request of the appellant.

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Brief facts germane for the purpose of disposal of this appeal are that:

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The petitioner was standing by the side of the road at Belavadi in front of Sai Hotel and at that juncture an

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MFA No. 21024 of 2011

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Ambassador car bearing its Reg.No.KA-24/A-8 came in a high speed and negligent manner and dashed to the petitioner causing injuries to him. The petitioner was shifted to Dr.Mahantshetti’s Hospital and had to spend Rs.25,000/- for medical expenses.

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It was contended that the petitioner was aged 38 years at the time of the accident and was earning Rs.6,000/- p.m. and due to the accidental injuries he is not in a position to do his routine work. Contending that the accident was due to the rash and negligent driving of the driver of the Ambassador car, he put forth a claim of Rs.5,00,000/-.

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Respondent No.1 owner of the car did not appear before the Tribunal but the Insurance Company appeared before the Tribunal and filed objections contending that the compensation claimed is highly exorbitant, imaginary and unsustainable under law and that the driver of the Ambassador car was not at all negligent in the said accident. It was contended that the

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MFA No. 21024 of 2011

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petitioner tried to cross the road suddenly and therefore, the accident was due to his negligence. Inter alia, it was also contended that the driver of the car was not having valid driving licence and therefore, the conditions of the insurance policy were violated and as such respondent No.2 is not liable to any compensation to the petitioner.

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On the basis of the above contentions, the Tribunal framed necessary issues and the petitioner was examined as PW.1 and one witness was examined on his behalf as PW.2. Exs.P.1 to P.16 were marked. Respondent No.2 examined two witnesses as RW.1 and RW.2 and Exs.R.1 to R.6 were marked.

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On hearing both the sides, the Tribunal came to the conclusion that the driver of the Ambassador car was not having a valid driving licence and therefore, fastened the liability on the owner/respondent No.1 before it and directed him to pay a sum of Rs.1,84,000/as compensation.

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5 - MFA No. 21024 of 2011

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Aggrieved by the said judgment and award, the

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petitioner has approached this Court in appeal. The appellant herein contends that the compensation awarded by the Tribunal is improper and incorrect and therefore, the compensation has to be reassessed by this Court. Inter alia, it was also contended that the liability should have been fastened upon respondent No.2 – Insurance Company since the driver of the Ambassador car was having a valid driving licence and the observations of the Tribunal are perverse in this regard.

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I have heard the argument by the learned

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counsel for both the parties, who have taken me through the evidence on record.

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The appellant contends that the accident had

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occurred due to the negligence on the part of the car driver as it hit him while he was standing by the side of the road. Based on the police papers i.e. FIR, complaint, spot mahazar, wound certificate and charge sheet, which are produced at Ex.P.1 to Ex.P.6, the Tribunal has come to

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MFA No. 21024 of 2011

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the conclusion that there was actionable negligence on the part of the car driver. Therefore, there cannot be any doubt that the accident was due to the negligence of the car driver.

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Petitioner had sustained lateral fracture head

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and neck of fibula fracture lateral condyle tibia fracture medial condyle tibia. Disability of the petitioner was assessed by PW.2 and he came to the conclusion that there is malunion and therefore there is disability of 45% of right lower limb. However, the Tribunal came to the conclusion that there is disability of 15%. By holding that the petitioner was having income of Rs.125/- per day, the yearly income was assessed at Rs.45,000/- and by applying multiplier of 16, a sum of Rs.1,08,000/- was granted under the head of loss of future earnings. A sum of Rs.25,000/- under the head of pain and suffering and a sum of Rs.4,000/- towards loss of income during laid up period and a sum of Rs.15,000/- under the head loss of amenities has been awarded by the Tribunal. Further, by

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MFA No. 21024 of 2011

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awarding Rs.24,000/towards medical expenses, Rs.3,000/- towards miscellaneous and other expenses and Rs.5,000/- towards future medical expenses, the Tribunal has awarded a sum of Rs.1,84,000/- to the petitioner.

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On careful perusal of these records and the reasoning given by the Tribunal, this Court comes to the conclusion that the compensation awarded by the Tribunal concerning loss of amenities is on the lower side. Since there is absolutely no material on record to show the income of the petitioner at Rs.6,000/- p.m., I do not find any reason to interfere in the assessment made by the Tribunal. Hence, in addition to a sum of Rs.1,84,000/awarded by the Tribunal, the petitioner is entitled for a sum of Rs.15,000/- towards loss of amenities in life.

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Coming to the question of liability, the perusal of the evidence of RW.1 and the extract of driving licence of the driver of the car which is at Ex.R.5, it is evident that the driver of the car Prakash Rama Kolkar was authorised to drive a light motor vehicle (LMV) from 09.02.1992. He

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MFA No. 21024 of 2011

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was permitted to drive heavy transport vehicle with effect from 30.06.2007 and heavy goods vehicle with effect from 29.06.1995. Thus, it is evident that the validity of the driving licence to drive a non-transport vehicle was up to 16.10.2013 and for transport vehicles was up to 16.12.2010. Admittedly, the accident occurred on 22.10.2005. Therefore, as on the date of accident, the driver of the car was having a valid driving licence. As such, the finding given by the Tribunal in para No.31 of its judgment that there is violation of conditions of policy is not sustainable under law. There is no discernible violation of the conditions of policy issued by the respondent – Insurance Company.

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Learned counsel appearing for the Insurance Company though made a futile effort by submitting that badge number is not forthcoming, it is irrelevant for the purpose of this appeal, since the Ambassador car has hit the petitioner, who was a pedestrian. Therefore, whether the driver possessed a badge or not is not relevant and as

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MFA No. 21024 of 2011

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such, the submission made by the learned counsel for the

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Insurance Company is devoid of merits.

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In view of the discussions made supra, the

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appeal deserves to be allowed in part. Hence, the following:

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ORDER

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The appeal is allowed in part.

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The impugned judgment and award passed by the Tribunal stands modified. The order of the Tribunal so far as it relates to dismissal of claim against respondent No.2

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– Insurance Company is set aside.

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The petitioner is entitled for compensation of

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Rs.15,000/- in addition to what has been awarded by the

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Tribunal (Rs.1,84,000/-) with interest at the rate of 6% p.a. from the date of petition till deposit before the Tribunal.

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10 -

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MFA No. 21024 of 2011

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Respondent No.2 - New India Insurance Company Limited is held liable to pay the compensation amount and it shall deposit the compensation amount with cost and interest before the Tribunal within three months from the date of this order.

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The other terms of the Tribunal regarding

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apportionment remain unaltered.

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Sd/JUDGE

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List No.: 1 Sl No.: 27

Shri. Shivanand S/O Virupaxappa Angadi, v. Sri. Vijay S. Chinnannavar

Case brief

What is this about?

What did the court decide?

Shri. Shivanand S/O Virupaxappa Angadi, v. Sri. Vijay S. Chinnannavar

Case brief

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What did the court decide?

What the court decided

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Statutes considered

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